Karl Heim.

The Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India online

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is now serving in a French penal establishment for the murder of a com-
panion in Paris.

Once the detective went to Australia to arrest a celebrated swindler

named T , who, among other things, was a brilliant and successful

card sharper. Mr. Freest brought him back to England.

On the way back the card sharper told the detective many of his ex-
periences. Here is one of them: "When I got to Australia, I went up
to one of the mining camps, where I was looked upon as a new chum with
plenty of money. The day after my arrival, two of the local sharps, taking
me for a pigeon, suggested a game of cards, and I agreed. I was their
game almost at once. I rang the bell loudly for the waiter, stopping the
game till his arrival. When he ca'iie, I said: 'Waiter, bring these gentle-
men a pot of paint and a brush.' It .

"'What for?' said the other two players. ' "•

"' Oh I' I said, holding up a couple of cards, 'you've marked some
of the cards, but not all of them. I thought perhaps you would like to
finish the lot;"

The tracing of and apprehension of the forger Is a most interesting
study," says (JoL James R. Branch, secretary of the American Bankers'
Association. "The association's detective agents classify photographs of
forgers and group their handwriting, so that careful studies of these lines
readily develop the origin of forgeries. On examining a forgery the
detective, first by comparison, determines if it was traced from a genuine
signature or copied by free-hand methods. Tracing Is a process of actual
reproduction, the forger copying the signature on transparent paper and
transferring it to the paper to be forged, and is most readily detected, as
the carbon or pencil used is sometimes noticeable under the ink. Free-
hand forgery is a studed copy, and if skilfully executed is quite difficult
to detect, sometimes deceiving the writer of a genuine signature whose
Writing has been imitated.



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88 ' thE CwMiKAT. Law Jouukal. [Vol- III

"The forger leaves behind him documentary evidence of his work,
which usually shows the earmarks of a professional. One forger or forger
band uses one system and pretext, another a distinctly different one. The
handwriting of forger and presenter offers a good opportunity of detection
by comparison with similar forgeries i*ecorded; the presenter's description,
in most cases, obtainable, is carefully studied, and can many times be
associated with some professional forger or middleman. The introducer,
paying teller or any others who transact business with the presenter are
shown by the association's detective photographs of suspects, from among
which the presenter is identified.

"Investigation usually results in his being located, and he is watched,
resulting in locating the forger and middleman. The bank from which
the small drafts are purchased also furnish a possible clew to the band by
describing and identifying a photograph of the purchaser, who is also
watched, and who meets the middleman and presenter, and possibly the
forger. The purchaser and presenter arc not difficult to convict when
collusion can be shown, but conviction of the middleman and forger require
considerable effort. All known members of a forgery band are arrested
simultaneously, a confession in most cases b3ing obtainable from presenter
or purchaser implicating the middleman and forger. The detectives often
find in the forger's rooms the paraphernala used in committing forgeries,
which also materially aid in his conviction.

The most common methods of bank swindling by forgery," said Col.
Branch, "ore^ by draft raising or altering by forging a signature or the
endorsement of the depositor or payee or by gaining the confidence of the
bank officials and obtaining money on drafts, checks or notes utterly
worthless.

"Draft raising is operated as follows: A purchases from a country
bank drafts for small amounts— 13, |4 or |5— which he delivers to B,
commonly known as the go-between or middle man, who gives them to C,
the forger, who, partly erasing the ink line after the amount on a small
draft, inserts the word 'thousand,' altering the figures in the same way
and returns it to B, who delivers it to D, a presenter. D, by false pretence,
obtains an introduction at a bank enrly in the month, informs the officials
that he was a resident of the section where the drafts were issued and that
he wishes to transfer his bank account. If he is accepted as a customer
he deposits the raised drafts, the alterations in which are usually not
detected by the bank drawn on.

"In a few da;y's the middleman appears with one or two small checks
drawn by D for certification, to determine if there is any suspicion. If the
forgery is not discovered by the bank drawn on the forgers have a month
in which to oi>erate before the issuing bank receives the draft and discovers



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Vol. lit] f HE CuiMINAL LaW JoURNAL. 81)

the fraud. Meanwhile D gradually withdraws by checks cash representing
the amount deposited.

"A swindler usually encounters little difficulty in obtaining a letter of
introduction to a bank if the introducer through a proposed business tran-
saction anticipates some benefit in giving it. The introducer should be
required to endorse any drafts deposited by new customers, thereby assum-
ing all responsibility, and satisfactory reference should be required of
a new depositor, which, if carefully investigated before any checking is
permitted, will prevent frauds of this kind. A forgery band of this kind
when successful divides its profits about as follows: Forger, 30 per cent.;
presenter, 30 per cent.; middleman and purchaser, 20 per cent. each.

"One of the common methods of bank swindling is by the forged
signature of a depositor to 'bearer' checks, or the forged signature and
endorsement to a check payable to some fictitious name. These forgers
learn where a business man has a bank account, obtain by a letter of
inquiry necessitating a reply or through dishonest employes cancelled
checks of a bank depositor, which are used as models to copy from. On
a blank check of the bank to be defrauded are carefully imitated the filling
and signature of a genuine check, made payable to 'bearer' or to some
fictitious name, which is written as an endorsement, underneath which is
forged the endorsement of depositor certifying to the genuineness of
endorsement of the payee.

"Such forged checks are usually presented for payment at a busy
time when there are a number of customers in lino at the paying teller's
window. Paying on checks with the endorsement apparently certified to
by a depositor is a very risky transaction. Sometimes if the signature is
questioned the presenter of a forged check will request the teller to com-
municate with the drawee by telephone, giving a number where a confede-
rate of the presenter is stationed, who replies that the check offered is
genuine. Personal identification, if insisted upon in these cases, will
prevent fraud. — Boston " Herald." — ^l. />.



CRIME AND PUNISHMENT OF CRIMINALS.

1 want to say just one word, suggest(?d by the fact that Judge Rose
Was president of the American Bar Association and stands to-day one of
that group of eminent American citizens, eminent for their serv ices to the
whole country, whom we know as the leaders of the American bar. I
want to speak as a layman about certain services that the learned profes-
sion of which Judge Rose is so eminent a member can render to an even
greater degree than they now render to the American i)eople. I know
that there is a good deal of distrust, rightly for the layman who speaks of
law ot tbeologyi



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90 The Criminal Law Journal. [Vol. lit

But I am going to say just a few words on the matter that concerns
good citizenship, in which the layman has a right to expect leadership, both
from lawyer and from theologian. We have a right to expect from the great
profession of the law a peculiar quantity and quality of service to the public.
There are certain abuses in connection with our whole system of law to-day,
which the layman cannot remedy, but which I earnestly hope that the men
of the law will themselves remedy. Now here I have got to speak merely
to my fellow laymen and shall have to invite correction. Our law comes
down from the time when the state, the government, was all-powerful, as
compared to the individual ; when the government acted as a plaintiff and
it was necessary that every possible safeguard should be thrown around
the defendant that he should be given every chance, and the fear of injus-
tice was a synonym for fear of injustice to the private citizen, against
whom the state proceed. It came from a time, if my memory of history
is right, when about five per cent. (I am speaking now of the common la\v)
of any given number of children born in England were punished by hang-
ing — when people were hanged for the most trivial oflfences, and when all
the machinery of tlie law was in the hands of the Government and directed
against the individual ; so that the one thing that had to be done was to
protect the individual. Circumstances in the past three or four centuries
have wholly changed, but the pressure of the law has not changed nearly
as rapidly. At present there is not the slightest question as to the indivi-
dual rights being preserved. Of course there is the possibility of error in
every human affair, but, speaking generally, the man accused of criminal
wrong, especially the man accused of criminal wrong against the public, has
every possible chance secured him : but the public has not got every chance
secured to it. No greater service is being rendered the public to-day than by
those members of the great profession whose good fortune it has been to
stand for those prominently identified with the prosecution of crimes against
the State. When I say crimes against the State, I not only refer to crimes
like those of bribery and corruption, committed by any jublic official, but I
mean such a crime as murder, or any similar hideous misdeed, where the
offence is not merely against the individuals, but against the entire com-
munity. It is right to remember the interests of individuals but it is right
also to remember the interests of that great mass of individuals embodied iii
the public, in the Government. It is unfortunate that we have permitted
practices that were necessary three hundred years ago for the protection of
innocent people, to be elaborated, to be perverted, so that they become a
means for allowing criminals to escape the punishment for their criminality.
ftlGHT OF APPEAL IS ABUSED.

We urgently need in this country methods of expediting punieshment,
methods for doing away with delays, methods which will secure to the pub-
lic an even chance with the criminal— I don't ask any more. If we cau



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Vol. Ill] The CttiMiNAL Law Journal. ftl

get an average of ju.st fifty per cent, of the criminals we shall be pretty
nearly all right and we will give the public an even chance with the crimi-
nal, whose oflEence is against the public. At present the right of appeal
is in certain cases so abused as to make it a matter of the utmost difficulty
ultimately to punish a man sufficiently influential to command really good
legal talent. Now, I am speaking of what I know, for I am speaking in
the light of experiences during the past three years in trying to get at cer-
tain public offenders who have been indicted, and some of whom it has
been almost impossible to get into the jurisdiction of the courts at Wash-
ington in order to try them. There are others whose cases are still on
trial. I feel that the man who offends against the state occupies a position
rather worse than that of any other criminal from the fact that he is a man
who attacks everybody instead of just one person, so that it is not the
special business of anyone to get at him. In consequence, if he can keep
the forces of justice at bay long enough, if he can secure one or two mis-
trials gradually the popular interest evaporates and the criminal gets of.

Now as the judge has so w^ell said, that the minute a man becomes
president he ceases being the president of a party and is the president of
every man, woman and child within the confines of the nation. But I per-
mit myself one particular bit of personal discrimination. I am just a trifle
more intent on punishing the republican offender than the democratic
offender, because he is my own scoundrel. I feel a certain sense of pecu-
liar responsibility for him and I am going to unload that responsibility if I
can. Of course as we all know, offences must come ; but I have endeavoured
to carry out the scriptural injunction to make it a matter of woe unto
him by whom they come. I am happy to say that we have a reasonable
portion of the offenders in question in stripes, but not up to the fifty per
cent, arcrge that I should like, and I w^ant to go a little further than we
have yet gone. Then, too, if the law is reasonably speedy and reasonably
sure, it takes away one great excuse for lawlessness. If some horrible
crime is committed, and the people feel that under the best circumstances
there will be an indefinite delay in the punishment of the criminal and that
the punishment will be uncertain even when the time for administering it
comes, then a premium is put u[)on that kind of lawbreaking, which more
than any other is a menace to the law. AVe ought to stand against all
forms of putting that premium on ; the long delays of justice, the abuses
of the pardoning powers, the sluggishness with which either court or attor-
ney moves, all of those things count in bringing about the condition of
affairs against which all of us must protest.

Now, a layman can do but little more than to give utterance to the
feeling that so many laymen have. I earnestly hoi)e that the bench and
bar of the United States will in all proper ways see to it that the loose
customs, for some of these things of which I complain are mere custouisi



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1)2 The Ckiminal Law Journal. [Vol. Ill

and not laws, inherited from the j)ast when conditions were totally diflEerent,
shall not be perverted so as to wrong the whole public by giving the
criminal an advantage to which he is not entitled, and that some substan-
tial improvement shall be made in the direction ef securing greater expedi-
tion and greater certainty in the administration of justice, especially in the
administration of criminal justice. — President Roosevelt in an address at
Little Rock, Ark., October 26, 1905.— C. L. X.



APPEALS TO THE PRIVY COUNCIL IN CKIMINAL CASES.

The administration of criminal law throughout the colonies and
dependencies of the British Empire is based on the principles of the com-
mon law of England, modified or varied, it may l)e, to some extent by
local legislation, or in the case of the Crown Colonies by orders of tie
Crown in Council.

As a general rule the administration of the criminal law, including
the forms of procedure, trial and punishment for crime, is left to the lo'ial
jurisdiction, and appeals from the colonies to the Privy Council are ex-
tremely rare. There is, indeed, an inherent jurisdiction in the Crown in
Council to receive appeals in criminal as well as in civil cases so as to
ensure the proper administration of justice and to preserve the due course
of procedure.

This prerogative, however, is very cautiously exercised. It is the
usual rule of the Judicial Committee of the Privy Council, to quote Lord
Halshury, L.C., in Riel v. The Queen (1885), 10 A. C, at p. 677, not to
grant leave to appeal in criminal cases except where some clear departure
from the requirements of justice is alleged to have taken place.

1\\ Ex parte Macrea, {l^^^i"] A. C. 34G, the Privy Council again
pointed out that although leave to appeal in criminal cases nmy be granted
in exceptional circumstances yet a mere misdirection of a judge to a jury,
whore no miscarriage of justice has actually resulted therefrom, will not
afford ground for special leave to appeal.

In 1892 the notorious murderer Deeming, then a prisoner under
sentence of death in the Colony of Victoria, petitioned the Privy Council
for special leave to appeal from the decision of the criminal court of the
colony on the ground that the conviction was against evidence, that the
petitioner was insane, and that there was no fair trial or time for defence.
In refusing leave to appeal, the Judicial Committee laid down the rule
that in criminal cases such leave would not be granted when there is no
suggestion or surmise that substantial and grave injustice has been done
either through a disregard for the forms of legal process or by some viola-
tion of the principles of natural justice. {E.r parte Deeming, [1892] .4. C.
i22.) This case was referred to and followed by the Privy Council in



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Vol. Ill] . The Criminal Law Journal. 03

dismissing a petition for special leave to appeal in Kops v. The Qiteen,
[1894] A. C\, at p. G52.

A later case of a petition for special leave to appeal from a verdict,
conviction, and sentence of the Consular Court in Japan for murder was
i:^ parte Careic, [1897] A. C. 719. The principle laid down in the
earlier cases was followed and the petition dismissed.

On the other hand, when the circumstances are such as to indicate
that a gross miscarriage of justice has occurred the prerogative has been
beneficially exercised. Thus in 1887, in the case of In re Dilletf, 12 A. C.
459, an appeal came before the Privy Council from a verdict of a jury
finding a defendant guilty of perjury before the Chief Justice of the
Supreme Court of British Honduras. In the judgment of the Judicial
Committee, which was delivered by Lord Watson, it was said that the rule
had l>een repeatedly laid down, and had been invariably followed, that the
Sovereign will not review or interfere wuth the course of criminal proceed-
ings unless it be shown that by a disregard of the forms of legal process,
or by some violation of the principles of natural justice, or otherwise,
substantial and grave injustice has been done. In the case before them
the Judicial Committee came to the conclusion that the con\'iction had
been obtained by directions of the Chief Justice of the Colonial Court
which were grievously unjust to the appellant, and in many instances
outraged the proprieties of judicial procedure, and that a conviction
obtained by such unworthy means could not be permitted to stand.

Cases of this serious type are, so far as we are aware, of rare occur-
rence, but the extreme importance of the right of appeal to the Privy
Council in such exceptional cases receives cogent illustration in the case
of Wehner v. The King, which came before the Judicial Committee on the
8th ult. The appeal in this case was from a judgment of the Court of
Appeal for Eastern Africa, dated so long ago as the 7th of March, 1905,
dismissing an appeal from an order made by Judge Hamilton, at Nairobi,
under which the appellant had been convicted of murder and sentenced
to death.

The appellant, Max Herman Wehner, a settler in East Africa, was
charged with having murdered a native named Mcharnia by shooting him
with a rifle on the night of the 16th of October, 1904. The chief witnesses
for the prosecution were two native boys, who alleged that Wehner had
shot Mcharnia with a rifle which was produced in court at the trial.
Nearly a month after the alleged murder some bones and an empty cart-
ridge were found some little distance from Wehner's camp. He was
thereupon arrested, committed by the town magistrate of Nairobi tor trial
at the court of sessions, and ultimately tried before Judge Hamilton, the
^ssions judge at Nairobi, and a jury of five persons. At the trial Wehner



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94 The Criminal Law Journal. [Vol. Ill

pleaded " not guilty," and in his examination denied the charge. He was
not defended. The medical evidence showed that there was no trace of a
bullet wound on any of the bones found, and several witnesses were called
to prove that neither Wehner, nor his friend who was camping with him,
had any rifle or gun with them at the time. Moreover, the remains were
never actually identified as being those of Mcharnia. Remarkable irregu-
larities in the procedure were alleged to have occurred at the trial. Thus
the jury consisted of five instead of nine persons, as required by the local
law, which constituted a distinct illegality. The jury were not sworn
until after the examination of two of the witnesses. Five of the native
witnesses were merely warned to speak the truth, after which their
evidence was given without oath or affirmation. These flagrant breaches
of the most elementary rules of criminal law and procedure seem almost
incredible, and that they actually occurred under British administration
seems to point to the urgent need of a more effective local supervision.

The jury, having listened to the judge's summing-up, after some
lengthy consideration, found the verdict " That the accused caused the
death of Mcharnia, but that he was not resi)onsible for his actions owing to
the influence of liquor." This the judge, incredible though it appears,
held to be a verdict of guilty of murder, and he sentenced Wehner to be
hanged. From this conviction Wehner appealed to the C'ourt of Appeal
for East Africa, urging that the verdict returned by the jury did not
amount to a verdict of murder. The jury themselves, it appears, joined
in a memorial for a commutation of the sentence, asserting that by their
verdict they intended to find the appellant guilty only of culpable
homicide and that the act was not a premeditated crime. The appeal was
dismissed by the C'ourt of Appeal for East Africa, who held that there
was no misdirection, and that in the circumstances the sessions judge
was under no obligation to explain the law to the jury, because the facts
which might have reduced the offence to culpable homicide not amounting
to murder, or the doing of a rash and negligent act within the meaning of
the penal code, had not been put in issue by the appellant. This ruling of
the local Court of Appeal seems almost inexplicable, and certainly one of
the most extraordinary travesties of justice which have ever come to our
knowledge. The elementary principle that a plea of " not guilty " by a
defendant in a criminal case puts in issue every question of law and fact
appears to have been overlooked or di regarded by the appellate tribunal.

The capital sentence w%as subsequently commuted to one of penal
servitude for life, but happily there remained for the accused the ultimate
right of appeal to His Majesty's Privy Council. This he exercised, special
leave to appeal was allowed, and more than a year after the original trial
the petition was heard before the Judicial Committee, the Earl of Hahhuri/,
Lord MacnarfUen, Lord, Davey, Lord Bohertson, Lord Athmon, and Sir



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Vol. Ill] The Criminal Law Journal. 95

Arthur Wilson being present. It was contended for the Crown that the
appellant liad raised no objection to any of the irregularities. After hear-
ing the arguments on both sides Lord Halshiiry said that the Attorney-
General had properly admitted that the whole proceedings were from the
first irregular. Their lordships were of opinion that it was impossible
that the judgment should be allowed to stand, and ordered the conviction
to be quashed. The terrible consequences of a gross miscarriage of justice
have in the particular instance been thus tardily averted, but the case
clearly demonstrates the urgency of more expeditious and less costly
machinery for invoking the aid of the ultimate Court of Colonial Appeal
in serious cases of this type. — J, P.



PHONOGRAPHS AS EVIDENCE.

The first instance, doubtless, of the use of a phonograph in a court of
this country as evidence, occurred, according to the newspapers, on a
recent trial in the United States court at Boston. Evidence of a similar
character, it is said by the press report, has been allowed in England. No
regular report of these cases has yet come to hand. In the Boston case it
is said that the phonograph was put in evidence to show the court the
noise of the elevated cars, for which the plaintiflE claimed damage to his
business block. The evidence was objected to, of course, and, in support
of its admission, the plaintiff's counsel contended that a phonograph is one
of the most accurate scientific recorders, and that it is admissible in



Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 12 of 91)